general counsel mur# '7^c>5 - fec.gov · mr. victor and tods and the subject matter of mur...
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^ . OFFICE OF GENERAL COUNSEL
FEDERAL ELECTION COMMISSION
FYLER ERDMAN,
2III8 M -1 PH 12: 5«l
Petitioner,
-V- •
ADAM H. VICTOR, TRANSGAS
DEVELOPMENT SYSTEMS, LLC, GARRY
COULTER, NANA YOSHIOKA, MARTA
DANI, RANDALL HARRIS, NOEL DALEY.
MICHAEL C.J. VANDERKEMP, JOSHUA
RRAKOWSKY, and GLEN WILLARD,
MUR No.
MUR# '7^C>5
Respondents.
TYI.ER ERDMAN ("Mr. Erdman" or "Petitioner"), a private citizen, for his
administrative complaint against Adam H. Victor ("Mr. Victor"), TransGas Development
Systems, LLC ("TGDS"), Garry Coulter, Nana Yoshioka, Marta Dani, Randall Harris, Noel
Daley, Michael C.J. Vanderkemp, Joshua Krakowsky, and Glen Willard (collectively,
"Respondents") states as follows:
CONTENTS THE PARTIES 3
THE COMMISSION'S JURISDICTION 4
BACKGROUND ON MUR NOS. 7005 & 7056 8
THE CA AROSE, IN PART, FROM THE VICTOR CONSPIRACY'S FRAUD 9
THE COMMISSION DID NOT PROPERLY ASSESS THE SCOPE OF 10
MR. VICTOR'S LIES OR HIS EFFORTS TO GET OTHERS TO LIE FOR HIM 10
Mr. Victor's Perjured Declaration 10
Ms. Yoshioka, Ms. Dani, and Mr. Hanis's Perjured Declarations 12
The Victor Family's Misleading Declarations 13
Mr. Coulter's False Declaration 16
The Noel Daley And Michael C.J. Vanderkemp Declarations Are Not Credible 20
Victor's Counsel Facilitated The Victor Conspiracy 24
Mr. Krakowsky's Bribe Attempt 31
Mr. Victor Pleads The Fifth In Deposition, But Lies To The Commission 35
THE CONSPIRACY FALTERS 38
FIRST ADMINISTRATIVE CLAIM CONSPIRACY AGAINST THE UNITED STATES (Against Mr. Victor, TransGas, Mr. Coulter, Mr. Daley, Mr. Vanderkemp, Mr. Harris, Ms. Yoshioka, Ms. Dani, Mr. Willard & Mr. Krakowsky) 40
SECOND ADMINISTRATIVE CLAIM VIOLATION OF 50 U.S.C. §30122 (Against Mr. Victor, Mr. Coulter, Mr. Daley, and Mr. Vanderkemp) 41
THIRD ADMINISTRATIVE CLAIM VIOLATION OF 50 U.S.C. §30116(a) & (c) (Against Mr. Victor) 41
FOURTH ADMINISTRATIVE CLAIM CONSPIRACY TO VIOLATE 52 U.S.C. § 30122 (Against Mr. Victor, Mr. Coulter, Mr. Daley, and Mr. Vanderkemp) 42
All exhibits cited in this complaint are available at the following link:
http://bit.ly/dfwavlol
THE PARTIES
1. Mr. Erdman is a resident of the State of Connecticut, living at
Weston, Connecticut 06883.
2. Mr. Victor is a resident of the State of New York, living and working at
630 1" Avenue, New York, New York 10016.
3. TGDS is a limited liability company organized pursuant to the laws of the
State of New York, with its principal place of business located at 630 1" Avenue, New York,
New York 10016.
4. Mr. Willard is an attorney whose principal place of business is 2SS0 M
Street, N.W., Washington, D.C. 20037.
5. Mr. Krakowsky is an attorney whose principal place of business is 60S
Third Avenue, New York, New York 10158.
6. Mr. Coulter is a resident of the State of South Carolina who can be
contacted at Preferred Reinsurance Intermediaries, 14 Monckton Blvd., Columbia, South
Carolina 29206.
5. Nana Yoshioka is a resident of the State of New York, upon information
and belief resides at , Brooklyn, New York 11217.
6. Marta Dani is a resident of the State of New Jersey, upon information and
belief resides at , Hoboken, New Jersey 07030.
7. Randall Harris is a resident of the State of West Virginia, P.O. Box 347
Mt. Gay, WV 25637
8. Noel Daley is a resident of the State of New Jersey, his current address is
known to the FEC from prior proceedings.
9. Michael C.J. Vanderkemp is a resident of the State of New Jersey, his
current address is known to the FEC from prior proceedings.
Garry Coulter, Nana Yoshioka, Marta Dani, Randall Harris, Noel Daley and Michael
C.J. Vanderkemp are all conduit contributors, who acted as straw donors for Adam Victor to
assist him in making campaign contributions to Senator Joseph Manchin and/or presidential
candidate Herman Cain.
THE COMMISSION'S JURISDICTION
10. The Commission previously determined that it had jurisdiction over the
Mr. Victor and TODS and the subject matter of MUR Nos. 7005 and 7056. See Conciliation
Agreement ("CA") MUR Nos. 7005 & 7056, August 11,2017, §1.
11. As a result of that determination, the Commission has jurisdiction over the
instant administrative complaint, whether it is considered as a new petition or a reconsideration
of MUR Nos. 7005 & 7056.
12. The basis for the instant proceeding is that Respondents formed a
conspiracy to coordinate the Respondents' submissions to the Commission in MUR Nos. 7005 &
7056 in order to offer perjured or misleading testimony to the Commission. That conspiracy (the
"Victor conspiracy") was orchestrated by Adam Victor and carried out by various overt acts of
witness intimidation and evidence tampering, including:
• Adam Victor threatened the various straw donor witnesses, including his own
daughters, with financial retribution, baseless litigation, and even physical
violence if they refused to sign the witness statements he put in front of them,
warning if they don't sign, "we'll go to jail." Mr. Victor's conspiracy of witness
intimidation is evidenced by several texts Alia Victor, one of Adam Victor's
daughters, sent to Tyler Erdman. These texts show that Mr. Victor threatened to
sue Jo-Alya Victor if she did not knuckle under to his demand, and
threatened physical retribution against Alexia Victor, his youngest daughter,
should she defy him. Ms. Victor's texts set forth the various threats Mr. Victor
used with respect to certain of the witnesses. On information and belief, Adam
Victor also advised various straw donors that they should just let him and his
attorneys handle their response to the FEC Complaint;
• Two of Adam Victor's lawyers, Joshua ICrakowsky and Glenn Willard,
participated in this conspiracy. On information and belief, Mr. Krakowsky
assisted Mr. Victor by preparing-initial drafts of fraudulent witness statements and
meeting various witnesses and repeating to them Mr. Victor's threat that they
would "go to jail" if they did not sign the statements. Indeed, on information and
belief, Mr. ICrakowsky drafted the perjurious declarations that Mr. Victor's
daughters refused to sign, despite his efforts to intimidate them. This was not
Mr. Krakowsky's first attempt at witness tampering;
Mr. Krakowsky pro hoc vice permission to practice in front of a California court
was terminated as a result of a prior attempt to bribe a witness on behalf of Mr.
Victor.
• Mr. Krakowsky further aided the Victor conspiracy by submitting a declaration
falsely stating that Mr. Erdman's testimony indicated that he did not have
"personal knowledge" of the allegations of his complaint;
Mr. Willard assisted this conspiracy, ceding to Mr. Victor's demand that
he represent several of the conduit contributors despite the clear conflict between
their penal interests and Mr. Victor's. By disregarding his ethical obligation not to
accept conflicting representations, Mr. Willard was able to act as a clearinghouse
for the conspiracy, drafting false declarations for the conduit contributors to sign,
and assuring Mr. Victor that all of the witnesses were telling the same story. In
doing so, Mr. Willard alleviated the "prisoners' dilemma" the witnesses otherwise
faced. Unless Mr. Victor and the conduit contributors could be sure that all of the
witnesses would provide consistent false testimony to the Commission, each of
the witnesses had reason to fear that his or her perjury would be revealed by one
of the co-conspirators. By representing all of the straw donors and drafting their
declarations, Mr. Willard could assure that all of the conspirators would tell the
same story.
• Mr. Willard also aided the conspiracy by altering a transcript of Mr. Erdman's
deposition testimony, surreptitiously deleting a portion of Mr. Erdman's
deposition testimony, in a desperate attempt to bolster Mr. ICrakowsky's false
representation that Mr. Erdman's EEC complaint was not based on personal
knowledge;
• Nana Yoshioka, Marta Dani, and Randall Harris aided the conspiracy by
submitting false declarations, denying that the checks reimbursing them for their
conduit contributions actually did so and falsely declaring that they received the
payments for other purposes. Ultimately, Mr. Harris recanted a portion of his false
testimony. Thereafter, Mr. Victor admitted that testimony submitted by Ms.
Yoshioka and Ms. Dani was false;
• Mr. Coulter, Mr. Daley, and Mr. Vanderkemp aided the conspiracy by submitting
false declarations denying they were reimbursed by Mr. Victor for their conduit
contributions;
• Alia Victor, Adam E. Victor, Alexia Victor, Jo-Ay la Victor, and Jo-
Aim Bruggenrann aided the conspiracy by submitting misleading declarations,
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drafted by Mr. Wiilard, averring that they were not reimbursed for political
contributions. None of these declarations revealed that Adam Victor had
fraudulently made the referenced political contributions himself in the declarants'
names;
• Mr. Victor orchestrated the conspiracy and supported it by his own false sworn
testimony and by coercing his co-conspirators to sign the various false
declarations he had his counsel prepare for them. Ultimately, Mr. Victor pled
guilty to a felony for making illegal campaign contributions and is due to be
sentenced on March 6,2018;
• On March 30,2016, Mr. Victor, aided by Mr. Krakowsky, attempted to
collaterally attack the Commission's authority, by commencing contempt
proceedings against Mr. Erdman and his counsel, in three separate actions
pending in the Supreme Court Of New York, New York County (collectively, the
"New York Actions"). Mr. Victor and Mr. Krakowsky sought to prospectively
nullify any Commission ruling by requiring Mr. Erdmaii and his counsel to
reimburse any fines the Commission might impose and any legal fees and costs .
Mr. Victor might incur in responding to Mr. Erdman's complaint. The contempt
motion was an obvious attempt to coerce Mr. Erdman to abandon his private
citizen complaints against Adam Victor and his conduit contributors. The New
York court denied Mr. Victor's motion in its entirety;
13. It is axiomatic that an administrative agency has the inherent power "to
protect the integrity of its own proceedings from fraud." Tokyo Kikai Seisakusho, Ltd. v. United
States, 529 F.3d 1352,1360-61 (Fed. Cir. 2008) {quoting Alberta Gas Chemicals, Ltd v.
Celanese Corp., 650 F.2d 9,12-13 (2'"' Cir. 1981) (upholding "the inherent power of any
administrative agency to protect the integrity of its own proceedings")). Indeed, "[i]t is hard to
imagine a clearer case for exercising this inherent power than when a fraud has been perpetrated
on the tribunal in its initial proceeding." Id.
14. The Victor conspiracy was only partially successful. On April 19,2017,
Adam Victor pled guilty to using Randy Harris, Nana Yoshioka, and Marta Dani as conduit
• contributors. See Exh. 1 Plea Agreement. Mr. Victor also pled guilty to fraudulently representing
that certain of his own illegal donations were actually made by his wife and children. However,
the Victor conspiracy did successfully insulate Mr. Victor from having to bear responsibility for
the illegal campaign contributions he made in the name of Mr. Coulter, Mr. Daley,
Mr. Vanderkemp, and various other conduit contributors, including certain of the contributions
he made in the names of Ms. Yoshioka, Ms. Dani, and Mr. Victor's wife and children.
BACKGROUND ON MUK NOS. 7005 & 7056'
15. Mr. Erdman filed MUR No. 7005 with the Commission on or about
January 29,2016.
16. The complaint in MUR No. 7005, alleged that Mr. Victor, TGDS and
others had violated the federal election laws by, among other things, making contributions to
federal election campaigns (specifically. Sen. Joe Manchin's campaign for re-election as a
Senator for West Virginia and Herman Cain's aborted campaign to become President of the
United States) in excess of the maximum amounts permitted by law and in the name of people
other than those actually making the contributions.
' The Commission can take administrative notice of all proceedings, submissions and documents in MUR Nos. 7005 & 7056. Enriquez-Gutierrcz v. Holder, No. 08-60769, Slip Op. at 15-17 (5"' Cir. 2010) (administrative tribunal properly took administrative notice of prior proceedings before it).
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17. The complaint in MUR No. 7056, filed on or about April 20,2016, alleged
that Mr. Victor, TGDS and others had violated the fede'ral election laws by, among other things,
making illegal in-kind contributions to Herman Cain's campaign to become President of the
United States by providing a plane for the campaign's use at discounted prices.
18. Mr. Victor and TGDS ultimately entered into a conciliation agreement
(the "CA") with the Commission on August 11,2017, in which the Commission, Mr. Victor and
TGDS settled certain charges leveled against Mr. Victor and TGDS. See generally CA. The
CA, narrowly, settled charges that Mr. Victor had violated the law by making campaign
contributions in excess of those permitted by 52 U.S.C. §30116(a) and that Mr. Victor and
TGDS had violated the law by making campaign contributions in the name of another person, in
violation of 52 U.S.C. §30122. CA, §V1. The resolution of these violations was based on Mr.
Victor's admissions regarding the pertinent violations. Id.
THE CA AROSE, IN PART, FROM THE VICTOR CONSPIRACY'S FRAUD
19. Mr. Erdman contends that the CA arose, in part, from the Victor
conspiracy's fraud.
20. First, Mr. Victor orchestrated a conspiracy aimed at perverting and
undermining the Commission's adjudicatory process by threatening conduit contributors,
coercing them to provide testimony that would exonerate him. That conspiracy was partially
successful.
21. Second, Mr. Erdman contends that the Commission erred in its evaluation
of the denials of Mr. Daley and Mr. Vanderkemp that they had been reimbursed for their
contributions to Senator Manchin. Mr. Erdman respectfully submits that in light of Mr. Harris'
recantation of his declaration of being a conduit contributor and Mr. Victor's subsequent guilty
plea, all of Mr. Victor's employees' contributions to Senator Manchin and presidential candidate
Cain should be presumed to be conduit contributions, absent evidence to the contrary.
22. Third, Mr. Erdman contends that the Commission incorrectly evaluated
the contributions ostensibly made by Mr. Coulter; evidence not available to the Commission
establishes that Mr. Coulter, contrary to the Commission's findings, was another of Mr. Victor's
straw donors.
23. Mr. Erdman contends that Mr. Victor attempted to sway the Commission
with false evidence submitted by him and others. Mr. Erdman respectfully submits that Mr.
Victor's efforts to pervert the Commission's fact-finding process fully justifies applying a
rebuttable inference that all political contributions made by Mr. Victor's employees to Senator
Manchin and presidential candidate Cain are conduit contributions for Mr. Victor.
THE COMMISSION DID NOT PROPERLY ASSESS THE SCOPE OF
MR. VICTOR'S LIES OR HIS EFFORTS TO GET OTHERS TO LIE FOR HIM
Mr. Victor's Perjured Declaration
24. In his first substantive submission to the Commission, Mr. Victor lied.
His initial declaration, filed on June 8,2016 was rife with falsehoods and intentionally
misleading omissions.
25. For example, Mr. Victor declared, under penalty of perjury, that the
payments he made to Marta Dani and Nana Yoshioka, coincidental with their contributions to the
Cain and Manchin campaigns, were not reimbursements for their contributions to the campaigns,
but, rather, were paid to them for an [RA contribution and for personal reasons. See Exh. 2
Victor Declaration, June 7,2016 at Tj 7.^
26. Mr. Victor also failed to explain how it was that the payments to Ms. Dani
and Ms. Yoshioka equaled the campaign contributions that they had made to the penny or why
^ The exhibits cited in this complaint are available at the following link: http://bit.ly/dfwavlol
10
these residents of New York and New Jersey, respectively, would be willing to part with a
substantial portion of their annual income to support a West Virginia Senate candidate and a, by
then, failing Presidential candidate. Id.
27. Mr. Victor's declaration includes several lies on the topic of his
relationship with Mr. Erdinan. Mr. Victor swore that: (1) he "treated [Tyler Erdman] like a son,"
but that all that changed when Mr. Victor refused him permission to date his daughter {see Exh.
2 at H 4.) None of that is true.
28. Mr. Erdman never sought Mr. Victor's permission to date any of his
daughters; never dated any of Mr. Victor's daughters; never broke into Mr. Victor's apartment;
never hacked his computer; and never copied documents or computer files without permission.
29. Instead, Mr. Erdman assisted two of Mr. Victor's other former employees,
Yevgeniya Khatskevich and Nazym Toktassynova thwart Mr. Victor's human-trafficking and
sexual harassment scheme and helped them vindicate their rights under the New York City
Human Rights Law (the "NYCHRL").
30. Mr. Victor's violations of the NYCHRL have spawned three actions in
New York and one in Delaware. Ms. Khatskevich and Ms. Toktassynova each sued Mr. Victor in
New York. Separately, Mr. Victor was sued in Califomia for repeatedly harassing various
employees of Pegasus Elite Aviation, Inc. ("Pegasus").
31. In retaliation, Mr. Victor brought an action against Ms. Khatskevich and
Mr. Erdman in New York. Mr. Victor asserted six causes of action against Mr. Erdman: (1)
unfair competition; (2) aiding and abetting breach of fiduciary duty; (3) conversion of an iPhone;
(4) conversion of a laptop computer; (S) conversion of documents; and (6) replevin of
documents. The court dismissed the first five causes of action and denied Mr. Victor's motion
for relief on the sixth cause of action. Mr. Erdman brought counterclaims against Mr. Victor for
retaliation.
32. After Mr. Victor's claims against Mr. Erdman were largely dismissed by
the New York Court, Mr. Victor commenced an action in Delaware against Mr. Erdman for
II
defamation. When Mr. Erdman moved to dismiss that action, Mr. Victor voluntarily dismissed
his action.
33. Separately, Mr. Victor was also sued in California for repeatedly harassing
various employees of Pegasus Elite Aviation, Inc. ("Pegasus").
34. Mr. Victor's claim that "treated [Tyler Erdman] like a son," is likewise
false. Mr. Erdman further submits that, in light of the texts quoted below and authored by Mr.
Victor's daughter Alia, being treated like one of Mr. Victor's children, would be an emotionally
scarring experience.
Ms. Yoshioka, Ms. Dani, and Mr. Harris's Perjured Declarations
35. Worse than his own lies to the Commission is the fact that Mr. Victor
recruited others to lie for him. The most obvious examples are the declarations of Mr. Harris,
Ms. Dani and Ms. Yoshioka. Mr. Victor manipulated these three former employees to lie for
him - stating falsely that they were not reimbursed by Mr. Victor for their contributions to the
Manchin and Cain campaigns - in an eftbrt to save himself.^ Their conduct constitutes a
conspiracy to perpetrate a fraud on the Commission.
36. Mr. Victor's solicitation of perjurious declarations from Ms. Yoshioka,
Ms. Dani, and Mr. Harris put them at risk for prosecution for violations of, among other statutes.
3 The TGDS check register contains critical evidence relating to the initial declarations submitted by Mr. Victor, Ms. Dani, Ms. Yoshioka and Mr. Harris. The check register, which was maintained by Ms. Grabowska and Ms. Yoshioka, plainly shows that these witnesses knew that their initial submissions to the Commission were blatant lies. Check Nos. 1216 and 1217, written out, respectively, to Ms. Dani and Ms. Yoshioka, on November 8 and 9,2011, have memo references indicating that they were for "Herman Cain contribution[s]." Likewise, check number 1256, written out to Mr. Harris for $2,500.00 on December 29,2011 on December 29,2016 (one day before his contribution to Manchin for West Virginia) has a memo line stating "reimbursement". It's one thing to deny that you made illegal campaign contributions. It's quite another - much more serious - thing to deny it while withholding your own check register from the Commission, which contains admissions establishing your crime.
12
k
18 U.S.C. §§ 371 (conspiracy), 1001 (false statements), 150S (obstructing proceedings before a
governmental agency) and 1621 (perjury).
37. Worse still, Mr. Victor did not merely attempt to persuade witnesses to
lie, the evidence clearly indicates that he set out to coerce them to do so.
The Victor Family's Misleading Declarations
38. Text messages passed between Mr. Erdman and Ms. Alia Victor ("Ms.
Victor"), Mr. Victor's, at the time, 25-year-old daughter, show the various tools Mr. Victor used
to keep his various co-conspirators in line and impel them to submit false testimony to the
Commission.
39. In February 2016, after Ms. Victor became aware of MUR No. 7005, she
contacted Mr. Erdman by text, describing Mr. Victor's efforts to pressure various of the "straw
donors," including her and her siblings, to lie for hirn:
Ms. Victor: Just heard from Alexia [another of Mr. Victor's daughters]. So
basically you put us in a position -where he's gonna force us to lie for him
about Manchin or he '11 punish us financially (or in Alexia's case physically
when she gets home). That right?
Mr. Erdman: I didn 7 put you there, Adam did. He wanted to buy a politician,
he sent the checks, he broke the law. None of you did.
SeeExh.3.
40. Ms. Victor explained that she was trying to resist Mr. Victor's efforts to
suborn perjury from her and hoping to help her siblings and mother do the same:
I haven 7 seen any document.s, I'm just hearing about this through Nana [straw
donor, Nana Yoshioka] andfuck face [i.e., Mr. Victor] so I need some gaps
filled in. Were our names put on ANY of the.se documents in ANY context?
13
Savannah's [Ms. Victor's friend] parents are laviyers so I Just need to know
exactly what I'm dealing with so I can try andfigure out a way for my sisters
and 1 to not have to get involved.
+ + +
More power to you for going after him, but I don 7 want my mom or sisters
involved Especially since he 'II succeed in bullying them into committing
perjury.
+ + +
That's not the point, the point is he's now put a gun to our heads to lie for him.
Is there anyway his case DOESN T hinge on my sisters and I saying anything
one way or another?
5eeExh. 3.
41. Later that month, Ms. Victor elaborated on the severity of the coercion
that Mr. Victor was exerting on his straw donors, including his own family:
Dunno. She [Ms. Yoshioka] never liked him [Mr. Victor] obviously biU I
dunno how gullible she is. JoJo [Ms. Victor's sister, Jo-Ayla] is pressuring me
to sign and says fuck face [i.e., Mr. Victor] will stop paying half my rent if I
don 7 - / still refuse to sign, but I really don V know what I'm gonna do if he
cuts me off. Any legal maneuvers you can think of?
+ + +
He Just toldJoJo if she doesn 7 sign she better get a lawyer 'cause he and his
lawyers will come after her, and of course the same applied to me (and he 'l[l]
REALL Y come for me). I need help.
14
+ + +
Last 1 heard he told Alexia if she and I don 7 sign we 'II "go to jail" (LOU). But 1 haven 7 heard
any updates in the past like two days so I honestly don 7 know what's happening. JoJo either
signed already or will sign soon, he made her talk to his lawyer who spun shit around and
convinced her to sign. ̂
+ + +
JoJo did say when .she was at dinner with him on Monday or Tuesday when all this went down,
he said, "J wonder if Alia knows Tyler hates me. If she knew she should have come to me and
told me he wants to take me down. " LOOOOOOOOL!
First off, you'd have to be brain dead to not think someone would hate your guts after
you treated them the way he treated you, and secondly you couldn 7 PA Y me to help shit
head [i.e., Mr. Victor] in any way whatsoever. Hell now, bitch ph.
See Exh. 3.
42. In March 2016, Ms. Victor explained to Mr. Erdman how her father was
using his attorneys to further the conspiracy:
He wants us to a sign a statement of designation of council [sic], directing all
questions on the matter to him (Glen Willard). I'm re/using to do it unless he
gives me a joint representation agreement and engagement letter specifying he
can 7 say a word on my behalf without my consent and no documents
pertaining to me in a material way will go forward until I review and approve
it.
+ + +
15
Basically Tubby's [i.e., Mr. Victor]plan was to make this guy our mouthpiece
so he can lie on our behalf]]. I ain 't failing [sic, falling] for that shit, but I
assume he won't agree to my terms since it stops him from lying for me which
defeats the whole point. So I've been encourage[d] to get my own attorney.
See Exh. 4.
43. Ms. Victor's texts are chilling: they show that Mr. Victor was threatening
financial retributions, lawsuits, and even physical abuse against straw donors who refused to
yield to his demand that they peijure themselves and accept Glen Willard as their attorney.
44. Ultimately, in May and June of 2016, Mr. Victor's wife and four children
signed declarations, which Mr. Victor submitted to the Commission. On information and belief
these declarations differed from the original declarations Mr. Victor importuned them to sign in
that they did not include outright lies. Nonetheless, all five declarations were misleading in that
they failed to disclose the. fact that they did not make the contributions that Mr. Victor had
fraudulently attributed to them. See Exh. S (Ms. Victor's declaration). Ms. Victor's declaration is
substantially identical to those submitted by her sisters, brother and mother, but for the name of
the declarant. In his own initial declaration, Mr. Victor also failed to address salient point that he
had contributed to the Manchin and Cain campaigns in their names. See generally Exh. 2.
Mr. Coulter's False Declaration
45. Mr. Erdman respectfully submits that the Commission erred in its August
3,2017 determination that there was no reason to believe that Mr. Coulter had violated 52 U.S.C.
§30122. There is substantial evidence Mr. Coulter knowingly acted as a conduit contributor for
Mr. Victor in making his December 30,2011 contribution to Manchin for West Virginia, the
principal campaign committee for Senator Joseph Manchin.
46. Mr. Coulter and Mr. Victor had close business relationship at the time they
made the suspect contributions. Mr. Coulter is in the insurance and reinsurance businesses in
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4
some respect and had been doing work on and off for Mr. Victor and his entities since at least
2009.
47. Indeed, at or around the time Mr. Coulter ostensibly made the $2,500.00
contribution to Manchin for West Virginia, Mr. Coulter was in possession of business cards
identifying him as the Financial Director of Respondent TODS, one of Mr. Victor's companies.
See Exh. 6 (A true and correct copy of Mr. Coulter's TGDS business card). Mr. Erdman notes
1 that the form for the card is dated December 29,2011, the day before the Manchin contribution.
Id Accordingly, when he made the contribution, there is, at a minimum, evidence that Messrs.
Victor and Coulter were holding Mr. Coulter out as being Mr. Victor's employee.
48. Mr. Coulter also had an email address using the company's "TGDS.com"
domain name, created by Mr. Erdman at Mr. Victor's instruction. Mr. Coulter did not explain to
the Commission how, if he was not Mr. Victor's employee, he came to possess the business
cards or email, which plainly are indicia of employment.
49. This is significant because, as the Commission is aware, Mr. Victor has a
documented and admitted history of using his employees as straw donors. Ms. Marta Dani, Ms.
Nana Yokiosha and Mr. Randall Harris, who all initially denied being straw donors, were all Mr.
Victor's employees^ and Mr. Victor ultimately admitted that they all acted as straw donors for
him.
^ Mr. Harris initially denied that he was an employee of Mr. Victor or his companies. However, Mr. Harris also had business cards issued by one or more of Mr. Victor's entities, describing him variously as the "Technical Director" for TGDS or providing no specific job description. See Exh. 7. Mr. Harris also describes himself as I'ransGas' "Technical Director" on his Linkedin page. See Exh. 8. Mr. Harris, again, like Mr. Coulter, also had an email address using the "TGDS.com" domain name. In his previous submissions to the Commission, Mr. Harris, like Mr. Coulter, failed to explain how it is that he possessed these accoutrements of employment with Mr. Victor's company.
17
50. The timing of Mr. Coulter's contribution to Manchin for West Virginia
also raises legitimate suspicions. It was made on the same date Mr. Harris was reimbursed for his
illegal contribution to the same candidate committee, i.e., December 30, 2017.
51. Mr. Coulter's contribution to Manchin for West Virginia must also be
considered in the context of other payments made to Mr. Coulter by Mr. Victor throughout 2011.
Specifically, Mr. Coulter received the following amounts from TransGas:
S 7
Payee Date Check No. Memo Amount
Garry W. Coulter 7/14/11 1175 GWC Consulting Agreement $5,000.00
Garry W. Coulter 9/16/11 1196 Consulting 5,000.00
Garry W. Coulter 10/5/11 1200 Milliman study #2 5,000.00
Garry W. Coulter 10/14/11 1207 Invoice # Oct 24 2011 5,000.00
Garry W. goulter [sic] 11/3/11 1214 10,000.00
Garry W. Coulter 11/23/11 1226 closing 50,000.00
Garry Coulter 12/13/11 1245 reimbursement 3,007.69
Garry W. Coulter 12/21/11 1250 Billing 12/21/11 7,500.00
Total $90,507.69
52. The information in the chart above is drawn from an Excel spreadsheet
(the "TODS 2011 check ledger") showing all checks drawn on one TODS checking account
during 2011. The original of the TODS 2011 check ledger is in Adam Victor's possession.
53. Mr. Erdman submits, upon information and belief, that in or around June
2011, Mr. Coulter entered into a consulting agreement with TransGas pursuant to which he was
paid $5,000.00 per month. Check numbers 1175,1196,1200,1207 and 1214, upon information
and belief, each constitute a payment of $5,000.00 by TransGas to Mr. Coulter for the months of
June-November 2011, pursuant to that agreement.
18
54. Check number 1250, drawn on December 21,2011, was written in the
atnount of $7,500.00. Part of that payment, $5,000.00, upon information and belief, was for Mr.
Coulter's services pursuant to the consulting agreement for the month of December 2011. Upon
information and belief, the remaining $2,500.00 from the check number 1250 was paid to Mr.
Coulter to cover his anticipated contribution to Manchin for West Virginia, which was recorded
by the candidate committee nine days later. ̂
55. The TGDS 2011 check register was not available to the Commission when
it determined that there was an insufficient basis for finding that Mr. Coulter had violated 50
U.S.C. §30122. Rather than produce that document and other similarly incriminating documents
Victor entered into the CA. Mr. Erdman submits that this evidence supports such a finding and
should be considered by the Commission.
56. Mr. Coulter's contribution to Manchin for West Virginia should also be
analyzed in light of Mr. Coulter's prior and subsequent political contributions. Below is a chart
summarizing Mr. Coulter's federal campaign contributions from 2003 through 2012:
Date Recipicnt/Afiiiiation/Race Amount
07/16/2003 Inglis for Congress/ Republican/Congress, South Carolina $500.00
12/22/2003 Bush-Cheney '04 (Primary), lnc./Republicari/President 2,000.00
^ As to the other two checks paid by TGDS to Mr. Coulter during 2011, check number 1245, for $3,007.69, was reimbursement to Mr. Coulter for some out of pocket expenses that he incurred in working for TGDS. Mr. Victor is in possession of a document detailing those expenses. Check number 1226 is, upon inibrmation and belief, a success fee paid to Mr. Coulter in connection with a loan that TransGas obtained from a Potomac Energy Fund TG Investors, Inc. ("Potomac"). The "success fee" was \% of the $5 million loan that TGDS obtained. The loan was supposed to fund TGDS's erection of a coal-gasification plant in West Virginia. Mr. Victor explained the loan was funded by a "Union" pension fund, in exchange for agreeing to use union labor in the plants construction. Unfortunately, Mr. Victor spent all of the proceeds of the loan without ever constructing the coal-gasification plant. On information and belief, Potomac was left holding the bag, and has since gone defunct.
19
01/21/2004 Henry E. Brown, Jr. For Congress/Republican/Congress, South
Carolina
500.00
01/21/2004 Henry E. Brown, Jr. For Congress/Republican/Congress, South
Carolina
500.00
06/30/2004 John Thunc for U.S. Senate/Republican/ Senate, South Dakota 250.00
07/29/2005 Help America's Leaders PAC/ Republican Leadership Political Action
Committee
250.00
09/06/2007 Fred Thompson PAC/Republican/President 250.00
09/23/2009 David Thomas for Congress/Republican/Congress, South Carolina 500.00
12/30/2011 Manchin for West Virginia/Democrat/Senate, West Virginia 230.00
01/17/2012 Friends of Herman Cain/Republican/President 500.00
Total 57,750.00
57. Of the ten contributions noted, nine went to candidate committees for
Republican candidates or a Republican controlled leadership PAC. Only one contribution, the
December 30,2011 contribution to Manchin for West Virginia, went to a Democratic candidate.
58. Further, the contribution to Manchin for West Virginia was the largest of
Mr. Coulter's contributions and the only one that equaled the statutory maximum.
59. Mr. Erdman submits that the evidence discussed above in reference to Mr.
Coulter's contribution to Manchin for West Virginia on December 30,2011, much of which was
not before the Commission during its investigation of and deliberations on MUR Nos. 7005 &
7056, strongly implies and provides a basis for finding that Mr. Victor used Mr. Coulter as a
straw donor.
The Noel Daley And Michael C.J. Vanderkemp Declarations Are Not Credible
60. Both the Daley and the Vanderkemp declarations are devoid of any
exculpatory detail. Mr. Daley's declaration merely states:
20
NOEL DALEY states under the penalties of perjury, pursuant to 28 U.S.C. §
1746, as true and correct, the following:
lam one of the individual persons identified in the complaint in this matter and
I make this declaration upon personal knowledge.
At the time of the contributions identified in paragraph 50 of the complaint, I
was a harness racing horse trainer for Adam Victor's horses, who paid me for
stable training fees, and reimbursements and commissions for horse sales and
purchases.
The unidentified payments and/or checks referenced in paragraphs 52 and 54
were not paid to me.
I declare under penalty of perjury that the foregoing is true and correct.
See Exh. 9. Mr. Vanderkemp's declaration is nearly identical {see Exh. 10),
changing merely the name of the declarant, the description of his work for Mr. Victor, and the
paragraphs referenced.
61. Mr. Daley and Mr. Vanderkemp worked for Adam Victor & Son Stables
("AVSS") and were paid through a Signature Bank checking account maintained by AVSS. It is
probable that Adam Victor reimbursed Mr. Daley and Mr. Vanderkemp by checks drawn on that
account in March 2011 at or about the time of their March 29, 2011 "contributions" to the
Manchin campaign.
62. Neither Mr. Daley nor Mr. Vanderkemp has made any political
contributions other than to Senator Manchin. Their political contributions occur at the same time
as the admitted conduit contributions of Mr. Harris, Ms. Dani, and Ms. Yoshioka. The
21
declarations submitted by Mr. Daley and Mr. Vandcrkemp are nearly identical to each other and
to the declarations submitted by Mr. Harris, Ms. Dani, and Ms. Yoshioka. They have no indicia
of reliability.
63. In assessing the truthfulness of Mr. Daley's declaration, the Commission
should be aware that Mr. Victor and Mr. Daley have participated in other illegal conduct
together. For example, Adam Victor and Noel Daley sued the Executive Director of the Indiana
Horse Racing Commission, when he refused to allow Mr. Victor's horse to participate in a race
due to Mr. Daley's reputation for drugging horses:
The ARCI report revealed that Daley had been suspendedfrom racing in
New Jersey for 270 days, fined $20,000 andforced to reimburse the New
Jersey Racing Commission related to the discovery of'drugs and drug
instruments' confiscated from his barn and stable area. Gorajec also contacted
the New Jersey Racing Commission and obtained a copy of Daley's settlement
agreement with the Commission. In it, Daley admitted violating the racing
rules of New Jersey by possessing numerous controlled, dangerous substances.
According to Gorajec, he had never seen a violation of this magnitude in his
career,
Given Daley's history, Gorajec made a determination that if Daley were to
apply for a license, Gorajec would refuse to issue a
license. Goraject instructed the Commission's offices at Indiana Downs to deny
any application made by Daley. Daley applied for his license on August 18,
2006, the same day that he had a horse scheduled to race. The Commission
refused to issue the license.
22
See Daley v. Gorajec, 2007 WL 2286132 at * 2 (S.D. Ind. Aug. 7,2007). See
also Exh. 11 (John Brennan's December 16,2106 Affirmation) at ̂ 49-52 and the exhibits cited
therein.
64. Indeed, it appears that Mr. Daley's reputation for drugging horses was the
reason that Mr. Victor hired him. In a March 27,2006 email, Adam E. Victor bragged that they
had hired "the best juice man" for their horses. See Exh. 12.
65. In addition, Adam Victor secured an E-3 visa for Mr. Daley's relative,
Aaron Daley. Mr. Victor secured the visa on false premises, reporting to federal authorities a
much larger salary than he was actually going to pay Mr. Daley. As a result, Mr. Victor had to
periodically "pay" Mr. Daley amounts in accordance with the visa, which Mr. Daley would
"kick-back" to Mr. Victor. Adam Victor's accountant, Lenny Abruzzo,® facilitated these illegal
transactions. In a June 26,2008 email to Mr. Victor, Aaron Daley referenced the visa scheme;
Adam, I spoke with Lenny and he said we need to cut a $20,000 check from
POAfor my payroll/visa requirements. Canyon please send me an email
confirming that is okay and maybe even send a note to Marta and/or Nana
asking to draft that. Lenny wants it done by 30th June. See Exh. 13. ̂
Mr. Abruzzo can be reached at (973) 966-5500 or inl:'[email protected]. 7 Adam Victor used a similar fraudulent visa scheme for a subsequent employee, Ms. Khatskevich, certifying to immigration authorities that TransGas Energy Systems, LLC would employ her as an "organizational psychologist" at a salary $79,914 annually. See Exh. 14 atm 102-106. Mr. Victor told her, however, that she would only receive approximately 60% of that salary, with the remainder being kicked back to him. Id.
23
Victor's Counsel Facilitated The Victor Conspiracy
66. Between Mr. Erdman's initiation of MUR No. 7005 on January 29,2016
and Mr. Victor's submission of his June 8,2016 declaration, Mr. Victor took further steps to
solidify his conspiracy to undermine the Commission's investigation and deliberations. He
arranged for his various straw donors to retain Glenn Willard, of the law firm Squire Patton
Hoggs (US) LLP,' as their counsel. Mr. Willard, apparently blinking past the potential for
conflicts of interest - such as those exposed in Ms. Victor's text messages, quoted above - was
also serving as Mr. Victor's counsel.
67. Mr. Erdman submits that this situation - Mr. Willard representing multiple
co-conspirators, each with a varying degree of culpability - is blatantly improper. It clearly
benefited Mr. Victor to the detriment of the straw donor co-conspirators. See, e.g., People v.
Chew, 830 P.2d 488, 489 (Col. 1992) (imposing discipline upon a lawyer, court found that
lawyer could not adequately represent the interests of clients, a father and son, because of their
different degrees of culpability: the lawyer's duly of loyalty to the son required him to advise the
son to testify against the father and the lawyer's duty of loyalty to the father required him to
resist such efforts). Plainly, Mr. Victor was attempting to control the content of the testimoriy his
employees and family members submitted to the Commission by controlling their attorney. In
doing so, Mr. Victor exposed them to criminal liability in order to try to save himself.'
68. Mr. Victor's use of counsel to pre.sent the Commission with
misinformation continued in his supplemental submissions. On July 25,2016, Mr. Willard filed
a document entitled Respondents' Response to Complainant's Additional Information with the
' The firm is actually misidentified as "Squire Patton Boogs (US) LLP" in some of Mr. Willard's submissions to the Commission.
' Indeed, ultimately, Mr. Victor threw Ms. Yoshioka and Ms. Dani under the bus, admitting that they were straw donors in an effort, again, to roinimi^e his own liability before the-Commission.
24
Commission. Based on the declaration of Mr. Victor's long-time New York lawyer, Mr.
Krakowsky of Davidoff, Hutcher & Citron LLP, Mr. Willard argued that the Commission should
dismiss Mr. Erdman's complaints because they were based neither on personal information nor
information and belief.
69. In fact. Mr. Krakowsky's declaration was based on his distorted
recollection of Mr. Erdman's deposition testimony in Transnational Management Systems, LLC.
et al. V. Pegasus Elite Aviation, Inc., et al. - Case No. LC 100724 (Sup. Ct. Los Angeles Co.)
(the "77VMS LA litigation"), a litigation in which an entity owned and controlled by Mr. Victor
was suing another company over the manner in which defendant supposedly mismanaged one of
his airplanes. Pegasus countersued for Mr. Victor's lurid sexual harassment of its employees.
70. Mr. Krakowsky submitted a declaration to the Commission in which he
swore that Mr. Erdman testified that he did not have "personal knowledge" of Mr. Victor's bank
account information - having obtained the bank account information from an attorney
affirmation in one of the sexual harassment lawsuits lodged against Mr. Victor - which formed
part of the basis for his complaints to the Commission.
71. Mr. Krakowsky, however did not have Mr. Erdman's actual transcript and
was only relying on his memory of Mr. Erdman's testimony. Nonetheless, Mr. Willard felt free
to argue that that Mr. Erdman's complaint was based neither on information and belief nor actual
knowledge. On this basis, Mr. Willard contended that MUR Nos. 700S & 7056 should be
dismissed.
25
72. Two days later, on July 27,2017, Respondents submitted a selection of
pages from Mr. Erdman's deposition in the TNMS LA litigation, apparently in support of the
previous arguments and statements of Messrs. Willard and Krakowsky.'®
73. On its face, the deposition excerpt emphatically does not support the
argument that Mr. Erdntan lacked personal knowledge of Mr. Victor's illegal campaign
contributions. Indeed, in the testimony that Respondents submitted, Mr. Erdman quite clearly
stated that he had been solicited as a straw donor by Mr. Victor:
Q. Where did you get this information from?
A. Mr. Victor had solicited me to make similar contributions in both of
those instances so I was well aware of where it is and it was also mentioned in
the record of I believe, Yevgeniya's sexual harassment case.
Exhibit 15 at 140:9-13." In short, contrary to Mr. Willard's argument and Mr.
Krakowsky's declaration, in his deposition - even the misleadingly truncated excerpt of that
deposition that Respondents submitted to. the Commission - Mr. Erdman explicitly testified to
his personal knowledge of Mr. Victor's efforts to skirt the campaign finance laws.
74. The deposition excerpts also do not support the argument that Mr. Erdman
lacked information and belief to support his complaints against Mr. Victor. On the narrow issue
of Mr. Erdman's knowledge of Mr. Victor's banking information and the checks Mr. Victor
wrote to reimburse certain employees' contributions, Mr. Erdman testified that obtained this
10
II
A true and correct copy of the portion of Mr. Erdman's deposition, as submitted to the Commission by Respondents is included as Exh. 15. The documents released by the Commission in MRU Nos. 7005 & 7056 include only the pages from Mr. Erdman's deposition, without any declaration or cover letter explaining and/or authenticating them. If such additional documents exist, Mr. Erdman requests that they be released to the public.
A true and correct copy of Mr. Erdman's entire deposition is included as Exh. 16.
26
information from an affirmation submitted by Mr. Andrew Costigan in one of the sexual
harassment litigations brought against Mr. Victor. Certainly, this level of specificity, which
more than allows for an inference of culpability, meets the standard for pleading upon
"information and belief." Arista Records, LLC v. Doe. 604 F.3d 110, 120 (2d Cir. 2010)
(pleading can be made "upon information and belief where the facts are peculiarly within the
possession and control of the defendant... or where the belief is based on factual information
that makes the inference of culpability plausible").
75. Not content to merely mischaracterize Mr. Erdman's testimony and the
standard required of complaints filed with the Commission, Respondents took their misdeeds a
step further by doctoring evidence they placed before the Commission.
76. As noted. Respondents filed seven pages of Mr. Erdman's deposition in
the TNMS LA litigation, five of which were introductory and foundational and two of which
contained substantive testimony, pages 139-140. 5'ce Exhibit IS. While Respondents contended
that Mr. Erdman's testimony on those pages supported the proposition that he had no personal
knowledge about the allegations he made. Respondents also severely truncated their presentation
of Mr. Erdman's testimony.
77. From the end of page 140 through the middle of page 142 of his
deposition, Mr. Erdman discus.sed how his personal knowledge, discussions with others and
general awareniess of what was going on around the office informed the allegations contained in
his complaints to the Commission. Respondents, of course, failed to provide pages 141-142 of
the deposition to the Commission. However, they also failed to provide the Commission with a
complete copy of page 140.
78. Comparing deposition page 140 that Respondents submitted to the
Commission with page 140 of the deposition contained within the copy of the entire deposition
{see Exhibit 15 at 140 and Exhibit 16 at 140), it is apparent that Respondents were not trying to
present reasoned argument based on the facts and the law. They falsified evidence before
submitting it to the Commission.
27
79. Page 140 in Exhibit 15 has line numbers from 1-25 going down the left
side of the page, as do the other page in the deposition transcript. However, in the version that
Respondents submitted to the Commission, there is no text corresponding to lines 20-25;
Respondents' submission makes it look like the court reporter cut off page 140 at line 19.'^
80. Reference to the real copy of page 140 of Mr. Erdman's deposition {i.e.,
Exhibit 16) plainly reveals that lines 19-25 contained the following question and answer, which
directly addressed Mr. Erdman's personal knowledge of Mr. Victor's illegal activities:
Q. Okay. Tell me about the situation when Mr. Victor personally solicited
you.
A. Yeah. Mr. Victor way approaching people in the office offering to
reimburse them for contributions. He offered to write a check for the amount of
the contribution if he'd give in exchange for giving him a [break between page
140 and 141] check for Senator Manchin or Herman Cain.
Exhibit 16at 140:20-141:1.
81. Quite obviously, this question and answer did not fit into Respondents'
theme that Mr. Erdman had no personal knowledge of the allegations he made, so Respondents
just deleted it from the deposition pages they submitted. If there is any doubt that Respondents
The Commission should take note that the line numbers going down the left-hand side of deposition page 140 in the pages Respondents submitted to the Commission on July 27,2017, do not have uniform fonts or sizes and do not go in order from 1-25. The numbers marking line numbers 2,4 and 5 are plainly smaller than the other line numbers, while the numbers noting lines 1 and 3 are considerably larger. Moreover, on the "copy" of page 140 that Respondents submitted, there is no line 14 - in order, the line numbers run 13,19,15. In comparison, in the copy of the deposition included by Mr. Erdman with this submission, the line numbers on page 140 are uniform as to size and font and run consecutively from 1 to 25. Mr. Erdman submits that these differences constitute additional evidence of doctoring documents at the Squire Patton Boggs firm. Compare Exhibit 15 at 140 with Exhibit 16 at 140.
28
orchestrated this fraud-by-erasure, the Commission should note that the pages of the complete
Erdman deposition transcript do not have a footer at the bottom.
82. The pages submitted by Respondents have the following footer:
C:\Users\gwillard\Docwnents\FEC Matters\Adam Victor - MUR 7056\Erdman
Depo Pages.docx
See Exhibit 16 at 140; generally Exhibit IS at 140. This footer, which
contains die identifier "gwillard," which stands for "Glenn Willard," conclusively indicates that
the deposition pages submitted to the Commission by Respondents were prepared - or more
correctly, doctored - at Mr. Willard's firm, Squire Patton Boggs (US) LLP.
83. Clearly, Mr. Willard falsified Mr. Erdman's transcript in a desperate
attempt to make it appear to corroborate Mr. Krakowsky's absurd claim that Mr. Erdman's FEC
complaint was not based on personal knowledge. Mr. Krakowsky certainly knew better. In fact,
shortly after Mr. Erdman's deposition concluded Mr. Krakowsky sent an email to Ms.
Khatskevich's counsel complaining about how devastating Mr. Erdman's testimony was to
Adam Victor's case:
"Pegasus lawyer went over 5 hours and isn't even finished yet. I had to buy a
sandwich at a break and eat it while Tyler was shitting all over .Adam." See Exh. 17.
84. Mr. Krakowsky's declaration is impossible to square with his
representations to the New York court hearing the sexual harassment claims against Mr. Victor.
There, Mr. Krakowsky, on behalf of Mr. Victor brought a motion for contempt against Mr.
Erdman and his attorney for filing the FEC Complaint. See Exh. 18. Iri that motion, far from
questioning whether the FEC Complaint was based on personal knowledge, Mr. Krakowsky
implicitly conceded the truth of Mr. Erdman's allegations and asserted that they had to have been
derived from a personal inspection of Mr. Victor's books and records. Id. at 6-7 ("[i]n January
2016, Erdman and Brennan filed a complaint with the FEC that specifically utilized certain
29
Confidential Documents ... [and] identified specific checks that Erdman and Brennan allege
were checks made to evade campaign finance rules.")
85. On February 25,2016, Mr. Krakowsky wrote to Mr. Brennan,
complaining that "[t]he FEC Complaint identifies certain employees of Mr. Victor and identifies
specific check numbers which neither you nor Mr. Erdman could be aware of outside of the
documents stolen from Mr. Victor by Mr. Erdman and his girlfriend,
Yevgeniya Khatskevich." See Exh. 19. That is to say, Mr. Krakowsky was complaining about
Mr. Erdman's FEC allegations, not because they were untrue, but because Mr. Erdman was not
supposed to know the details of Mr. Victor's illegal contributions.
86. In fact, Mr. Erdman had access to the check numbers for the checks Mr.
Victor used to reimburse conduit contributors because they were identified in a February 3,2015
affidavit filed by counsel in Adam Victor's suit against Ms. Khatskevich and Mr.
Erdman. See Exh. 20 (Andrew Costigan's February 3,2015 Affirmation) at 23-25.
87. On June 27,2016, New York Supreme Court Justice Shlomo Hagler heard
argument on Mr. Victor's contempt motion. In arguing on Mr. Victor's behalf, Mr. Krakowsky
referred to the checks reimbursing Mr. Victor's conduit contributors as "checks that Mr. Victor
made to certain political candidates." See Exh. 21 (6/27/16 Tr.) at 11. That is to say, in June
2016, the same month that Mr. Victor submitted fal.se declarations denying the contributions, Mr.
Krakowsky was arguing to the court in New York that Mr. Erdman should be held in contempt
for blowing the whistle on Mr. Victor's illegal contributions.
88. Ultimately, the New York court ruled that it never intended to shield the
incriminating documents from the FEC and that Mr. Erdman and his counsel could not be held in
contempt for providing information to the Commission;
THE COURT: ... I don't think the Court has the power or authority to
insulate Mr. Victor jrom liability before the FEC.
30
If there w a violation, the Commission investigates and they will say yes or no.
It's not my problem. It's not my authority. It was never my intention that the
information could not he used as part of an investigation, as part of a review
by a governmental agency. Otherwise, all you have to do is put up before the
Court and insulate liability from another case or possible criminal liability.
That cannot be the law that would be unjust and certainly never the intent of
this Court to do.
Id. at 12.
89. Thus, Mr. Krakowsky was well aware that the checks cited in the FEC
Complaint revealed Mr. Victor's guilt at the time he otTered his declaration to the Commission.
90. Messrs. Willard and Krakowsky have put a new twist on the old law
aphorism. It used to be: Weak on the law, argue the facts; weak on the facts, argue the law. Mr.
Victor's attorneys "flipped the script," adding: Weak on both, grab the White-Out and erase the
evidence. There can be no mistake: In an attempt to make Mr. Krakowsky's July 25,2016
declaration to the Commission appear true. Respondents presented truncated, false and
misleading evidence to the Commission. Worse still, this was all in service of the completely
false initial submissions made by Mr. Victor. The Commission should be concerned about
falsified evidence submitted to prop up perjury.
Mr. Krakowsky's Bribe Attempt
91. Two weeks after Mr. Erdman's deposition in the Pegasus action
referenced above, the Califomia court presiding over it revoked Mr. Krakowsky's admission to
practice before it due to "improper" conduct with a witriess, Tony Carcione. The improper
conduct in question was Mr. Krakowsky's offering Mr. Carcione a success fee of up to $250,000
in return for his "useful" testimony.
92. Mr. Krakowsky apparently first made this bribe attempt during a
settlement discussion with Mr. Carcione's counsel, Brendan Collins. On April 29,2015, Mr.
31
Collins requested: "Josh, can you send me your proposal in writing. I want to make sure I
accurately convey it to my client." Sec Exh. 22.
93. Mr. Krakowsky responded, setting forth the terms of the deal (the "Victor
Payoff') he had in mind:
For settlement purposes only: inadmissible pursuant to FRE 408
Carcione to agree to fully cooperate with Adam Victor's lawsuits against Tim
Prero and Pegasus, including the lawsuit in California, the one in SONY and
the anticipated law.suit to recover the money Prero earned on the sale of the
772 Plane. Carcione was the person who alerted Adam to all of the issues
with Prero and Pegasus, including Prero charging Victor for gas he never
used and failing to make the appropriate fixes, and the resulting decrease in
the value of the planes. We want Carcione to essentially act as our expert in
the case in California - walking us and the Court through exactly what Prero
did and how he ripped Victor off. We want him to be truthful and helpjiil.
In exchange, we will agree to settle this lawsuit for a provisional payment of
$250,000, which is not to he paid until all litigation against Prero is resolved.
If there is any settlement with Prero/Pegasus, then Carcione's provisional
payment gets wiped out. If there are judgments against Prero/Pegasus that
exceed $500K, for every dollar over S500K, Carcione's provisional settlement
amount will be reduced by that figure. Thus, if total judgment against
Prero/Pegasus are $700K, then Carcione's final payment would be $50K. If
total judgments against Prero/Pegasus are $750K or more, Carcione pays
nothing. Thus, Carcione '.v only risk would be if we take Prero/Pegasus to
judgment in all cases and recover less than S750K.
32
Essentially, we want a way to let Carcxom off, but make sure he cooperates
agaimt Prero.
See Exh. 22.
94. On July S, 2016, Pegasus filed a motion to disqualify Mr. Krakowsky for
offering the Victor Payoff to Mr. Carcione. Pegasus' attorney, David Olson, submitted a July 5,
2016 declaration (the "Olson Dec.") in support of the motion:
Notwithstanding Victor's testimony that Carcione is a crook and a fraud,
plaintiffs' counsel tried to bribe Carcione and tamper with Carcione's
anticipated testimony in this case. In an email dated April 29, 2015 (attached
as Ex. 540), plaintiffs' counsel confirmed to Carcione's lawyer an offer to
settle the $3 million New York action pending against Carcione. Specifically,
counsel suggested ways in which Carcione could te,stify and stated that Victor
wanted Carcione to serve as his "expert" in this case. In exchange, Victor
would "agree to settle this [the New York] lawsuit [against Carcione]for a
provisional payment of S250K. which is not to be paid until all litigation
against Prero is resolved.
See Exh. 23.
95. Later, Mr. Olson described the Victor Payoff as "a sliding scale sweetheart
settlement of that other case contingent on the recovery in this case if he would agree to testify.
Not only is all of this conduct by plaintiffs' counsel downright sleazy, unethical, and appalling,
but it should, under California law (and any sense of fair play), lead to disqualification of
counsel, as shown." Exhibit 23 at 12.
96. In their opposition to the motion, the Victor Affiliates offered no
justification for the Victor Payoff at all, saying merely that Mr. Krakowsky was solely at fault:
33
I
The Tony Carcione part of the motion involves actions of a lawyer in New York
who represents Transnational in a New York case against Tony Carcione and
Pegasus in New York Apparently, that lawyer was pro hac vice in this case
until his local counsel was replaced. But he is no longer pro hac vice because
of the substitution of local counsel. One cannot be pro hac vice without local
counsel.
See Exh. 24 at 1. That is the only reference to the Victor Payoff in the Victor
affiliates' opposition. It is apparent that the Mr. Victor's lawyers could not think of any way to
plausibly defend Mr. Krakowsky's conduct. The best they could do, without naming Mr.
Krakowsky, was to simply suggest that he was no longer actively involved in the case.
97. When Mr. Victor was deposed in the Pegasus case he denied ever offering
the Victor Payoff, claiming that his attorney was acting entirely on his own;
Q. You were willing to dismiss the case that you - the fraud case in New
York against Mr. Carcione, he pays you a provisional $250,000, which he can
buy down, by the more you tag Pegasus, the you 're going to request from
A. I wasn 't prepared to do that.
Q. Oh, you are prepared to do that?
MR. SA WKIW: Objection. Misstates testimony.
THE WITNESS: No, I was not prepared to do that.
BY MR. OLSON:
Q. Okay. So, Mr. Krakowsky was acting on his own when he
did that?
A. Absolutely.
See Exh. 25 at 333-34.
34
On July 28, 2016, Judge Lawrence Riff of the California Superior Court revoked Mr.
Krakowsky's right to appear before the court, based upon a finding that Mr. Krakowsky had engaged in
"improper" conduct with Mr. Carcione:
lam going to order the pro hac vice of attorney Krakomky... vacated. His pro
hac vice permission to participate in this litigation is hereby vacated and
withdrawn. I do so on the grounds that I find his communications and his
conduct relative to witness Carcione, C-A-R-C-I-O-N-E, was improper....
See Exh. 26 at 22:16-25. Following his disqualification, Mr. Krakowsky withdrew
from representing Mr. Victor in the New York litigations relating to his harassment of various
employment. See Exh. 27.
Mr. Victor Pleads The Fifth In Deposition, But Lies To The Commission
98. There are additional, outside and contemporaneous sources of information,
not available to the Commission during its evaluation of Mr. Victor's initial submissions,
confirming, not only that Mr. Victor was attempting to perpetrate a fraud on the Commission, but
that his false testimony was submitted willfully.
99. For example, on July 11,2016, Mr. Victor was deposed in the Pegasus
litigation.'^ In that deposition, Mr. Victor invoked his Fifth Amendment right not to incriminate
himself over a dozen times in response to questions regarding contributions to the Manchin and
Cain campaigns. See Exh. 25. Mr. Erdman directs the Conunission's atteiition to pages 688:7-
691:23 of the exhibit.
13 The Commission can take administrative notice of all proceedings, submissions and documents in litigations involving Mr. Victor. Yang v. Gonzales. 478 F.3d 133, 143 (2"'* Cir. 2007) (administrative tribunal properly took administrative notice of decision in state court proceedings).
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100. It is hornbook law that a person can only invoke the Fifth Amendment and
refuse to testify if he has a reasonable belief that truthful testimony would incriminate him. See
e.g., United States v. Gecas, 120 P. 3d 1419,1424 (11th Cir. 1997) (in order to invoke Fifth
Amendment privilege not to testify, witness must have a "reasonable, real and appreciable"
concern that truthful testimony could lead to his prosecution).
101. Accordingly, in June 2016, Mr. Victor declared to the Commission, under
penalty of perjury, that he had not reimbursed Ms. Dani, Ms. Grabowska and Mr. Harris for the
campaign contributions they nominally made to Manchin and Cain. Then, barely a month later,
he was invoking his Fifth Amendment right not to incriminate himself when asked questions
about these very contributions and reimbursements. It is readily apparent that Mr. Victor's
invocation of the Fifth Amendment is evidence of his guilty knowledge at the time he submitted
his first declaration to the Commission. Plainly, Mr. Victor knew that he had lied to the
Commission.
102. This is part of a pattern. Mr. Victor has made a habit of lying to and
attempting to undermine the authority and integrity of courts spanning the country from New
York, New York to Los Angeles, California. For example:
a. On September 21, 2016, Mr. Victor filed an Amended
Verified Answer and Affirmative Defenses in a sexual harassment case that had
been filed against him, styled Khatskevich v. Victor, et al. - Index No.
151658/2014 (Sup. Ct. N.Y. Co.) (Hagler, J.) ("the Khatskevich litigation"). See
Exh. 14 and 28 (True and correct copies of the Verified Complaint and Mr.
Victor's Verified Answer in the Khatskevich litigation). In his verified answer,
which was filed roughly two months afier Mr. Victor invoked the Fifth
Amendment during his deposition in the Pegasus action, Mr. Victor denied
making campaign contributions to Friends of Herman Cain using the names of his
wife and four children and reimbursing at least two employees for contributions
they had made. Cf. Exhibit 14, W2S, 130-36, and Exhibit 28, till28,130-36.
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Indeed, Mr. Victor went so far as to affirmatively state that his children had made
their own campaign contributions to Friends of Herman Cain, a lie that the Victor
children carefully avoided making in the declarations they submitted to the
Commission. See Exhibit 28, ^136. Significantly, under New York law, a verified
answer is the equivalent of an affidavit, sworn to under penalty of perjury, see
Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204,210 (2'"' Dep't 2009)
("Since the verification makes the pleading, or those parts of the pleading that aie
verified, sworn data, a verified pleading is the equivalent of an affidavit");
b. Mr. Victor owned two Gulfstream G-IV airplanes, which
have been the object of much litigation, all of it brought by Mr. Victor and all of it
frivolous. The penultimate courtroom battle over one of his planes is styled
Transnational Management Systems, LLC v. Prero, et ai. Index No. 6S3S43/2016
(Sup. Ct. N.Y. Co.) (Crane, J.) ("the Pegasus New York litigation"). A true and
correct copy of Mr. Victor's complaint in the Pegasus New York litigation is
included at Exh. 29. One of the central themes of the Pegasus New York litigation
is that Mr. Victor supposedly was defrauded when he purchased one of his planes
because he was not informed that there had been a tire in the landing gear of the
plane some years prior to his purchase. Exhibit 29, 56-84. Mr. Victor repeated
these allegations, at some length, in his affidavit opposing Defendants' motion to
dismiss the Pegasus New York litigation. A true and correct copy of Mr. Victor's
afihdavit is included at Exh. 30. Mr. Erdman directs the Commission's attention to
^^46-48 of that exhibit. On reply. Defendants pointed out that prior to closing on
the airplane in question, Mr. Victor had emailed one of his bankers,
acknowledging that he knew about the fire and considered the plane to be better
than new because all new parts had been used to fix the problem. A true and
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correct copy of Defendants' reply alllnnallon is included at Gxli. 31. In short, Mr.
Victor's fraud claim in the Pegasus New York liii|>allon is itself a fraud; and
c. Mr. Victor lies under oath frivolousiy. For example, in the
Khatskevich litigation, plaintilTalleged and Mr. Victor admitted that he was the
trustee of the Adam Victor Grantor Trust ("AVGT') and that he controlled its
operations. Cf Exh. 14 at ^ 14, and Exh. 28 at 1|14. About a year later, in his
0 deposition in the Pegasus litigation on July 12.2017, Mr. Victor repeatedly 4 1 denied knowing the identity of the trustee of his own grantor trust. See Exh. 32 at
pps 812-20.
THE CONSPIRACY FALTERS
103. Starting in late August 2016, agents for the Federal Bureau of
Investigation ("FBI") conducted interviews with various straw donors. Upon information and
belief, Mr. Victor, his wife, his daughters, Randall Harris, and Noel Daley, as well as others,
gave statements to the FBI and/or gave testimony before a grand jury empaneled in the Southern
District of West Virginia to investigate Mr. Victor's illegal campaign contributions.
104. When Ms. Victor and her sister were approached at their workplace by the
FBI, Ms. Victor contacted Mr. Erdman, leading to the following text exchange:
Alia: Ruh-oh. FBI's apparently here to see me and Jojo. They're talking
to Jojo now (J got her a job 2 floors above me), but I'm not talking to them
without a lawyer. Anything to worry about?
Erdman: I would make sure to try and tell the truth
Alia: Oh yeah def. Honestly I'm more concerned about if they ask me if I've
been in contact with you, my family would KILL me w
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Luckily I just happened to be having dinner with Sav's mom (a lawyer)
tomorrow so I'm hoping she can give me an out like pleading the S"* or
something ^
Erdman: I'm really can't stress enough that telling the truth is the most
important thing, Ultimately you didn't commit a crime, Adam did.
I would talk with Sav's mom and follow her advise. 1 don't see any reason the
FBI would going alter you
Alia; Oh yeah I mean if they ask and 1 can't go for a (legal) out like pleading
the 5"* I would def tell the truth, I just reeeaaaally hope 1 don't have to answer.
Pretty sure they'll ask 'cause the FBI asked jojo today.
See Exh. 33.
105. The FBI interviews put pressure on the conspiracy Mr. Victor orchestrated
to lie to the Commission. On information and belief. Alia Victor, Noel Daley, and Randall Harris
were called before the grand jury in the West Virginia proceedings. On information and belief,
all three witnesses testified truthfully about Mr. Victor's efforts to use them to thwart federal
campaign finance laws.
106. The dam concealing Mr. Victor's lies to the Commission cracked
sometime on or about December 16, 2016, when one of his employees, Mr. Randall Harris
admitted to the Commission that he had acted as a conduit contributor for Mr. Victor, despite his
prior testimony to the contrary. See Exh. 34, General Counsel's Report No. 2, MUR Nos. 7005
& 7056, April 5,2017 at 2, n. 5.
107. After Mr. Harris recanted, Mr. Victor, partially relented, and admitted that
he had lied. However, he did not admit the entire scope of his false testimony. He merely
confessed that he had made the contributions that were ostensibly made in the names of three of
his employees and five family members. See Id. He did not admit to soliciting conduit
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contributions from Mr. Coulter, Mr. Daley, or Mr. Vanderkemp. Moreover, he continued to
conceal from the Commission his role in suborning perjury from the conduit contributors.
108. By that time, tiie Commission was also aware that Mr. Victor was the
target of a criminal investigation undertaken by the Public Integrity Section of the U.S.
Department of Justice. See id. at 2, n. 5. On April 19,2017, Mr. Victor pled guilty to a felony
count in connection with the contributions that he had made to the Cain and Manchin campaigns
in the names of other people. He is scheduled to be sentenced on December 21,2017.'''
FIRST ADMINISTRATIVE CLAIM CONSPIRACY AGAINST THE UNITED
STATES (AGAINST MR. VICTOR, TRANSGAS, MR. COULTER, MR. DALEY, MR.
VANDERKEMP, MR. HARRIS, MS. YOSHIOKA, MS. DANI, MR. WILLARD & MR.
KRAKOWSKY)
109. Mr. Erdman incorporates by reference the allegations stated in 1-108 as
if set forth fully at this point.
110. From in or about and between February 2016 and March 2017, both dates
being approximate and inclusive, in the District of Columbia, New York, New York and
elsewhere, Mr. Victor, TransGas, Mr. Coulter, Mr. Daley, Mr. Vanderkemp, Mr. Willard and
Mr. Krakowsky, together with others, knowingly and intentionally conspired to perpetrate a
fraud on the United States by impeding, impairing, obstructing, and defeating the lawful
investigative and adjudicatory functions of a government agency, namely the Commission, and
to commit offenses against the United States, to wit, violations of the federal election laws and
regulations promulgated thereto.
The criminal case against Mr. Victor is styled United States v. Victor, Case No. 1:17 -cr-00053 (KBJ-1) (D.D.C) (Jackson, J.) (filed March 8,2017) and details regarding it are available through PACER. Plea agreement is Exh. 1
40
111. In furtherance of the conspiracy and to etTect its illegal object,
Respondents committed the overt acts noted in the Second and Third Administrative Cla'uns and
the overt acts, among others, in the District of Columbia, New York, New York and elsewhere as
set forth in this Complaint.
SECOND ADMINISTRATIVE CLAIM VIOLATION OF SO U.S.C. §30122 (AGAINST
MR. VICTOR, MR. COULTER, MR. DALEY, AND MR. VANDERKEMP)
112. Mr. Erdman incorporates by reference the allegations stated in lll|l -108 as
if set forth fully at this point.
113. In accepting payment from Mr. Victor and or TransGas and then
transferring part of that payment to the Manchin for West Virginia committee, Mr. Coulter, Mr.
Daley and Mr. Vanderkemp each knowingly permitted his name to be used to effect a
contribution to the Manchin for West Virginia committee that was funded by Mr. Victor and/or
TransGas.
114. In paying Mr. Coulter, Mr. Daley, and Mr. Vanderkemp and
simultaneously directing each of them to contribute those funds to the Manchin for West
Virginia committee, Mr. Victor made a contribution in the name of another.
115. The actions of Messrs. Victor, Coulter, Daley, and Vanderkemp
constituted violations of 52 U.S.C. § 30122.
THIRD ADMINISTRATIVE CLAIM VIOLATION OF SO U.S.C. §30il6(A) & (C)
(AGAINST MR. VICTOR)
116. Mr. Erdman incorporates by reference the allegations stated in ̂ 1-108 as
if set forth fully at this point.
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r 17. In funding Mr. Coulter's, Mr. Daley's and Mr. Vanderkemp's
contributions to the Manchin for West Virginia committee, Mr. Victor exceeded the contribution
limits applicable to him for such contributions in that, prior to the date of Mr. Coulter's, Mr.
Daley's and Mr. Vanderkemp's ostensible contributions, Mr. Victor had already contributed the
maximum amount permitted to the Manchin for West Virginia Cornmittee for the applicable
campaign cycle.
118. Mr. Victor's actions as noted in ^ 75 constituted a violation of 52 U.S.C.
§30116(a)&(c).
FOURTH ADMINISTRATIVE CLAIM CONSPIRACY TO VIOLATE 52 U.S.C. §
30122 (AGAINST MR. VICTOR, MR. COULTER, MR. DALEY, AND MR.
VANDERKEMP)
119. Mr. Erdman incorporates by reference the allegations stated in THI1-108 as
if set forth fully at this point. t
120. Upon information and belief, by agreeing to have Mr. Victor fund Mr.
Coulter's, Mr. Daley's, and Mr. Vanderkemp's contributions to the Manchin for West Virginia
conunittee, Mr. Victor, Mr. Coulter, Mr. Daley, and Mr. Vanderkemp knew that they were
undertaking to violate the federal election laws.
121. Overt acts taken by them in furtherance of this conspiracy include, without
limitation, Mr. Victor, directly or indirectly, reimbursing Mr. Coulter, Mr. Daley, and Mr.
Vanderkemp for their contributions, the contributions themselves, and, on information and
belief, communications among them and/or their agents regarding the scheme.
122. These acts and agreements, knowingly undertaken by Mr. Victor, Mr.
Coulter, Mr. Daley, and Mr. Vanderkemp constituted a conspiracy to violate 52 U.S.C. §30122.
42
WHEREFORE, in light of Mr. Victor's history of purposeful dishonesty before
the Commission and courts, Mr. Coulter's participation in Mr. Victor's schemes and his knowing
deception of the and, in particular, their efforts, with others, to perpetrate an elaborate fraud on the
Commission, Mr. Erdman respectfully submits that the Commission should:
A. Reopen MUR Nos. 7005 & 7056 for the purpose of re-evaluating the
propriety of the Conciliation Agreement and considering harsher penalties against Mr. Victor; or^
in the alternative,
B. Open a new MUR for the purpose of investigating Mr. Victor's criminality
and implementing harsher sanctions against Mr. Victor; and, in any event,
C. Release the entire record, including all outside submissions, in MUR Nos.
7005 & 7056 to the public, including, without limitation, Mr. Randall Harris' December 16,
2016 submission to the Commission and Mr. Victor's March 23,2017 declaration to the
Commission;
D. Allow for an adverse inference against Respondents - effectively
reversing the burden of proof in this matter, such that it rests with Respondents - due to their
perjury, submission of false evidence and conspiracy; and
E. Allow such further relief as the Commission may deem just and proper.
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Dated: Weston, Conn.
January 3,2018
Subscribed and sworn to before me this the
3rd day of January 2018.
My commission expires .
ELLEN L. JONES NOTARY PUBLIC
STATE OF CT My Commission Enpiros January 31,2018
Notary Public
Respectfully submitted,
Tyler Erdman
Weston, CT 06883
Correspondence to:
John T. Brennan
Law Office of John T. Brennan
151 East 4'" Street, No. l-A
Brooklyn, New York 11218
(347) 785-3005
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